In the battle to free an orca, activists secure a small victory

Animal-rights activists Wednesday won a round in the long-running fight over the fate of Lolita, a killer whale captured in Puget Sound and kept in the Miami Seaquarium for more than four decades.

The federal government accepted a petition that calls for the captive orca to be protected under the Endangered Species Act.

The move means the government will consider the activists’ arguments over the next nine months, before making a decision early next year, said Brian Gorman, spokesman for the National Marine Fisheries Service in Seattle.

“All we’re saying at this point is that the petition has merit,” Gorman said.

Jenni James, a litigation fellow for the California-based Animal Legal Defense Fund, called the action “a great first step.”

“Lolita belongs with her family, and not in a tiny tank performing tricks,” she said.

Representatives of the Miami Seaquarium could not be reached for comment Wednesday, but in the past have said Lolita is healthy and well cared for at the theme park.

Even if the activists eventually prevail, it’s unlikely the whale would be released back into Puget Sound, Gorman said.

“I don’t think there’s anyone who realistically thinks an animal that has been captive for more than 40 years could be successfully returned to the wild,” he said.

Among the other options activists have suggested is moving Lolita from Miami to a sea pen in the San Juan Islands, where she would be able to interact with members of her original pod.

Captured in 1970 along with several other whales, Lolita is the only one who still survives in captivity. The group she belongs to, called the southern resident population, was listed as endangered under the Endangered Species Act in 2005.

But that ruling excluded Lolita from protection.

Animal-rights groups, including the Animal Legal Defense Fund and People for the Ethical Treatment of Animals, filed a lawsuit that was dismissed, but which led to the current petition.

It’s not uncommon for endangered species to be exhibited in zoos, but the law confers special protection on such animals and governs the conditions under which they are kept, James explained.

The petitioners argue that Lolita’s conditions at the Seaquarium, where she performs regularly and has no orca companions, don’t meet the standards for an endangered animal.

“Without the protection of the Endangered Species Act, all she is is a piece of property for the Miami Seaquarium to profit from,” James said.

But protection for all of Puget Sound’s southern resident whales is currently in question.

As federal biologists consider the Lolita petition, they will also be reviewing a petition from the California-based Pacific Legal Foundation to delist the population.

Representing California farmers and others, the Pacific Legal Foundation argues that the southern residents don’t deserve protection, because they are part of a larger, healthy population of whales in Puget Sound.